Fidelity to the Constitution, which necessarily includes having an opinion as to its meaning, is not merely an authority. It is a responsibility.
The Supreme Court will soon decide three cases that involve an unprecedented attempt to subpoena financial and other personal records of a sitting President. These cases will inevitably involve judgments beyond mere law or even normal constitutionalism. The issues are different in fundamental ways from previous Supreme Court rulings about congressional investigations attendant to legislation and about the impeachment of President Clinton and near-impeachment of President Nixon. These three cases concern powers of Congress that are not expressly given by Article I of the Constitution. Directly at issue is not only the separation of powers but also the specific definition of each power. Moreover, two weeks ago, the justices asked for supplemental briefs addressing whether the use of these Congressional powers may be a nonjusticiable “political question,” though none of the parties involved seem inclined to make such an argument.
This article deals with the first two cases, Trump v. Mazars and Trump v. Deutsche Bank, involving subpoenas by three Committees of the House of Representatives for personal and financial records of President Trump. The third case concerns subpoenas for President Trump’s tax records by Cyrus Vance, the Manhattan (NYC) district attorney. Arguments in all three cases were postponed because of the coronavirus and will now be heard via teleconference on May 12.
In these cases, the President of the United States, Donald Trump, mentioned by name in the subpoenas, has sued personally and with his own counsel to have the subpoenas quashed. The role of the Department of Justice is that of amicus.
Congress’ “Auxiliary” Power of Investigation
In what may be unique in contemporary constitutional jurisprudence, the primary precedent is an 83-year-old case. In McGrain v. Daugherty (1927), Mall Daugherty, brother of President Warren Harding’s attorney general, Harry Daugherty, refused a subpoena to appear before a Senate committee to testify against his brother concerning the Teapot Dome scandal. The committee itself issued a subpoena and then an arrest warrant which was served on Daugherty by a Senate sergeant at arms. The Court upheld the warrant and held that although “no provision” of the Constitution “expressly” authorizes investigations, Congress does have “such auxiliary powers as are necessary and appropriate to make the express powers effective.” “Neither house,” however, “is invested with ‘general’ power to inquire into private affairs and compel disclosures.” The Court thus overturned a finding of the district court that the Senate was engaging in a “judicial function.”
In the Mazars case, the House of Representatives, arguing that the Supreme Court “has repeatedly upheld Congress’ ability to issue legislative subpoenas,” cites the unanimous decisions of the Court in United States v. Nixon (the 1974 case in which the Court denied President Nixon’s claim for “presidential immunity” from disclosure of internal White House communications) and Clinton v. Paula Jones (the 1997 case in which the Court ruled that President Clinton could be subjected to civil suits about his conduct before he became president). However, those precedents receive secondary attention. Instead, the House, in both the Mazars and Deutsche Bank cases, relies on the rulings of the D.C. and Second Circuit Courts of Appeals, respectively, for its major legal arguments.
Downplaying the large constitutional questions concerning the definition of the three powers of government and their separation, the Mazars opinion of the DC Circuit upholding the House subpoenas is largely limited to an affirmation of the McGrain principle that Congress does indeed have an investigatory power as an adjunct to its legislative power. The Mazars subpoenas are “a valid exercise of the legislative oversight because [they seek] information important to determining the fitness of legislation to address potential problems with the Executive Branch and the electoral system” (emphasis in original). In accordance with that, the House committee “is pursuing a legislative, non-law-enforcement purpose.”
Like the DC Circuit’s opinion, the similar holding of the Second Circuit in Deutsche Bank is based on the same kind of general endorsement of what it regards as an essentially unreviewable power of Congress to investigate. And the presidency itself may serve as a test case, for the Circuit cites and quotes with approval an argument made by the House in the district court that “Because of his prominence, much is already known about Mr. Trump, his family, and his business, and this public record establishes that they serve as a useful case study for the broader problems being examined by the Committee” (emphasis added).
As rationales for the subpoenas for President Trump’s personal financial records, the House Oversight Committee in Mazars offers, inter alia, President Trump’s relationship with his former lawyer, the now-convicted Michael Cohen, and the 2013 lease of a federal property, the Old Post Office, to a Trump company which, the Committee asserts, may be a continuing violation of the Emoluments Clause of Art II, § 1 which prohibits a president from accepting “other emoluments” besides his “compensation.” A “common thread” in the Committee’s investigations are “President Trump’s extensive financial interests.” And those concerns about Trump, the Committee says, bring up more general questions related to possible legislation “concerning financial disclosures, government contracts with federal officeholders, and government ethics.”
In Deutsche Bank, the subpoenas by the House Financial Services Committee to Deutsche Bank and the bank holding company Capital One seek documents relevant to its investigation of “money laundering and terrorist financing in the real estate market” and “compliance with the Bank Secrecy Act.” In connection with those concerns and because “President Trump’s business affairs have been the subject of many public reports,” the personal accounts, not only of President Trump, but also of three of his children are subpoenaed. The Intelligence Committee subpoenas to Deutsche Bank seek the same financial records as the Financial Services Committee for the purpose of investigating “the President’s foreign financial ties and the extent of foreign powers’ influence over him and our elections.” The stated rationale is to address the “possible need for legislative reforms” as to whether current laws and federal agency structures are “adequate to combat such threats to national security.”
The Singular Executive
The Justice Department in its amicus brief introduces its overall constitutional argument by pointing out that “These cases involve the first attempt by congressional committees to demand the personal records of a sitting President of the United States.” The Department concedes that, although a power to “conduct investigations or to issue compulsory process” is not enumerated in Article I, such a power to investigate and compel—including “into private affairs”—was conceded and eventually recognized explicitly in McGrain as an “auxiliary power to make the express powers effective” and as “an adjunct to the legislative process” by Watkins v. United States (1957). Further, DOJ continues, this auxiliary power is “subject to recognized limitations,” as set out in Quinn v. United States (a 1955 case which, like Watkins, dealt with the communism investigations of the House Un-American Activities Committee). The most important of these limitations is a denial of any power of “law enforcement,” such power being “assigned under our Constitution to the Executive and the Judiciary.” Regardless of any stated legislative purpose, DOJ asserts, the House has really acted with “the impermissible object of exposing illegality for its own sake,” that is, by making the subpoenas against Trump “a useful case study.”
The Department goes on to criticize the Mazars subpoenas for failing to show any critical connection to possible legislation about presidential conflicts or emoluments, or how information about Trump’s personal finances, including before he became President, could “in theory” lead to amendments to financial disclosure laws. Concerning the Deutsche Bank subpoenas, DOJ contends that Congress’ authority and jurisdiction in investigating a “far reaching public problem” such as money-laundering laws does not provide a rationale for the House to make the President “the primary target” of an investigation into that area. The House has exceeded even its normal, wide-ranging discretion in doing so. Likewise, on laws and possible amendments concerning foreign influence on elections, the House has not shown why the President should be “the primary target” in an examination of such laws. These excesses of the House violate the separation of powers, DOJ maintains.
The Department points out that the “executive power,” unlike the other two powers of the federal government, is vested in its “entirety” in “a single person” and, therefore, requires “special solicitude” from both the Congress and the judiciary, both of which branches are “plural.” The President’s powers and “official responsibilities,” of faithfully executing the laws, commanding the armed forces, and “speaking for all the people of the United States,” are “unremitting” and subject to no “adjournments.” Citing Nixon v. Fitzgerald (1982), which held that a president is not subject to civil damages for his acts as president, DOJ concludes that “the President enjoys a constitutional immunity from actions of coordinate Branches that threaten to undermine his independence or interfere with his functions.”
In his own brief, Trump contends that the House cannot subpoena his private records as “it wishes” simply by asserting that it is “considering legislation.” In addition, while conceding that Congress has the power to investigate attendant to lawmaking, Trump points out that the power is only “implied, not express,” in the Constitution and should not be used to “alter the structure of government.” Here, the House clearly “presses the outer limits of its constitutional authority.”
Congress has no power to “[expose] private details about individuals,” yet this is the intent behind the House’s “case study,” Trump argues. The “primary purpose” of the subpoenas is “law enforcement,” and the Court should not allow the House to disguise such a “law enforcement effort” as a “legislative agenda.” Overall, the House has failed to meet what the Court should hold is a “heightened demonstration of need” to exercise a “subordinate” power of Congress.
A Political Question?
In a surprise development, the Court on April 27 issued an order to the parties that they file short briefs by May 8, four days before oral arguments, to address the completely new issue of whether the “political question doctrine” applies to the case. The controlling precedent for that doctrine is still the Court’s 1962 decision in Baker v. Carr, in which the Court, laying down principles concerning what issues could be appropriately decided by the courts and what issues were left to the executive and the legislature, ruled that the redistricting of Congressional districts was justiciable under the Equal Protection Clause.
Per their responses to the Court’s order, none of the parties—neither the House, Trump, nor the Justice Department—think that the cases involve a political question. The House Committees contend that they “need to be able to enforce their subpoenas,” and, likewise, “the courts should be available to provide the Executive Branch safeguards, should it ever need them.” But the Committees also state that they would be happy for the Court to dismiss the case, thus leaving the decisions of the two Circuits standing. Trump argues that the cases involve “exceptionally important questions regarding the separation of powers [that] should be decided on the merits.” The Justice Department avers that deciding the cases as a political question “would in effect give congressional committees free rein to issue subpoenas to any third-party custodian without any meaningful checks or balances, because such third parties often would be inclined to comply (as the third parties in these cases have indicated they will).”
Constitutional Government in Partisan Times
Fundamentally, the constitutional jurisprudence has not advanced beyond the 1927 McGrain case. Congress has the “auxiliary” but not “general” power to “inquire” as part of its “legislative functions.” However, that jurisprudence has never before been put to the test of an exacting definition. It is now. When is that “general” power too general? And, conversely, when it is too specific? In 1927, both the legislative and any associated “investigatory” powers of Congress were more strictly limited by the enumerations in Article I. But after the New Deal, the Great Society, and successive decades, the legislative powers of Congress are now essentially unlimited. Are the Congressional subpoena powers likewise unlimited? And so unlimited as to include investigations of individuals?
Today, Congress does indeed have the authority to legislate on the subjects of money laundering, banking, and national security—and just about everything else—as the subpoenas and the three Committees’ Supreme Court brief assert. But in these cases, are the stated legislative purposes of the subpoenas by the three House Committees mere pretenses for conducting both a civil and an impliedly criminal investigation of Trump? Regardless, even if the “general” purpose be conceded, what is the constitutional meaning of using that general power against an individual? Is it not the executive branch’s function to enforce federal law, either through a federal agency’s civil suit or a Department of Justice prosecution? The Committees do have the expansive agreement of the two circuit courts of appeals below essentially stating that anything goes regarding the legislative powers of Congress. Per such rulings, Congress self-justifies its own self-definition of its powers—hardly the jurisprudence of a government of express and limited powers.
In its brief, the Department of Justice, citing Federalist 51, discusses the “harassment and distraction” a president may experience when “his political adversaries control one or both chambers” of Congress. Indeed, these cases exist in what may be an unprecedented climate of political rancor where respect for the separation of powers is often subordinated to partisan interests. The Supreme Court has a hyper-delicate judicial task before it.